The law recognizes certain communications as being so important as to warrant legal protection from forced disclosure in judicial proceedings. We have all heard of the doctor-patient privilege, and perhaps the priest-penitent privilege (more modernly, the clergy-penitent privilege), but the law also recognizes a privilege between attorney and client which protects confidential communications made to the attorney by the client. The privilege prohibits an attorney from testifying to confidential communications made to him by his client without the permission of the client.
The rationale for the existence of the attorney-client privilege is simple: Proper representation of a client requires that an attorney have all of the available facts and information – even information which may be damaging or potentially embarrassing to the client. Without the assurance that all such communications are protected, clients would be reticent to “open up” – thus hindering proper representation and protection of their interests. Only with complete candor can the attorney do his or her job.
Some things to remember about the attorney-client privilege:
- Communications (whether oral or otherwise) must be conveyed confidentially. The presence of or receipt by a third party can defeat the privilege.
- The privilege is that of the client – to be honored or waived at the client’s behest. An attorney may not waive the privilege without the client’s express permission.
- As the Supreme Court ruled recently, the privilege survives the death of the client. In other words, an attorney may not reveal confidential communications in a court proceeding even after the client’s death.
- Communications by the attorney to the client are also protected to the extent they reflect advice given in response to confidential communications or contain information previously given by the client.